Firm Update

Consider Fair Use Before Issuing a Takedown Notice

The Internet has been a boon to entertainment and information sharing. But it also presents a difficult environment for copyright owners trying to control their content. In Lenz v. Universal Music Group, the U.S. Court of Appeals for the Ninth Circuit imposed an additional burden on copyright holders who want to protect their material under the Digital Millennium Copyright Act (DMCA).

Courting controversy

In 2007, the plaintiff uploaded to YouTube a 29-second home video of her two young children dancing to the song “Let’s Go Crazy” by Prince. At the time, Universal Music Group (UMG) was responsible for enforcing Prince’s copyrights. UMG included the plaintiff’s video in a DMCA takedown notice it sent to YouTube listing videos the company believed to be illegally using Prince’s songs.

The plaintiff sued UMG under the DMCA, alleging that the takedown notice violated the DMCA because, in that notice, the company misrepresented that her video constituted an infringing use of the song. Both parties asked the court to enter judgment for them before trial. The trial court denied both requests, and both parties appealed.

Forming good faith

Under the DMCA, a takedown notice must include a statement that the copyright holder has a good-faith belief that the activity in question isn’t authorized by the holder, its agent or the law. The appeals court held that fair use is a use “authorized by … the law.” Therefore, a copyright holder must consider the existence of fair use before sending a takedown notice.

Further, the court found that, because the DMCA requires consideration of fair use before issuing a takedown notice, a jury must decide whether UMG formed a subjective good-faith belief about the video’s fair use. The question, it explained, isn’t whether the video actually represented fair use, but whether UMG formed a good-faith belief that it wasn’t.

Formation of a subjective good-faith belief doesn’t require an intensive investigation of the allegedly infringing content, the court said. But it cautioned copyright holders against merely paying “lip service” to considering fair use by claiming they formed a good-faith belief in the face of evidence to the contrary.

Interestingly, the court suggested that computer algorithms may be a valid and good-faith “middle ground” for processing voluminous content while still somehow considering fair use. Copyright holders, it said, could then employ individuals to review the minimal remaining content not culled.

Building a case

This case provides fair warning to copyright holders. If you decide to decry use of your copyrighted content online, be sure to build a case that you considered fair use before issuing a takedown notice.

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